The Digital Threat to Free Expression

Recently, in a series of unprecedented moves on the part of four major social media platforms, free expression was deliberately brought to a halt.

That the thwarting of the free expression in question took place on the same day adds to the alarming nature of the action by the digital powers that be.

Alex Jones’s InfoWars content was banished from Facebook, Apple, YouTube, and Spotify. The move appears to have been a coordinated effort.

The removal of the content was evidently motivated by a desire to rid the platforms of supposed hate speech. However, the same platforms continue to display pages that have far more incendiary and/or offensive content than InfoWars posted.

Provocateur Jones’s site was a convenient quarry for tech companies to begin their purge of content that they subjectively deem undesirable.

However, tech giants have laid down a track record that indicates they cannot be trusted to maintain a fair venue for the marketplace of ideas.

Approximately 70 percent of the people within our country now obtain their news from Google and Facebook. Additionally, the major tech concerns have a virtual stranglehold on the manner in which billions of people around the globe communicate.

Truth be told, there has never been a more massive concentration of media power than that which is squarely in the hands of Google, Facebook, Apple, Twitter, and a smattering of other internet companies.

As digital companies go about the business of justifying censorship, many are looking for solutions via regulation.

Restraints on speech imposed by private companies are not protected by the First Amendment, and companies do not have a legal obligation to provide freedom of speech to their users. While internet companies were once fierce advocates of free expression, this is unfortunately not the case anymore.

Being larger than many governments of countries throughout the world, the tech giants act in a quasi-governmental manner when they eliminate or limit speech within their internet province.

Some have proposed turning the big tech giants into public utilities. Others have urged breaking up the companies through the use of anti-trust law, a logical idea when considering that the major tech firms have essentially become a monopoly with no significant competition, e.g., Google’s dominance of the internet video market and Facebook’s rule over the social media sector.

British Prime Minister Theresa May recently suggested that social media platforms be treated like news organizations, which would render them responsible for content appearing on their platforms.

Rep. Steve King has recommended revisiting the law that shields internet companies from being treated as the publisher of content users’ posts, thus restoring legal responsibility for defamatory and other tortious or criminal content that is published. The Iowa congressman is referring to a statutory provision that made the current internet social media landscape possible: Section 230 of the Communications Decency Act.

Publishers of content are typically liable for the material they disseminate, even when the content originates from individual unpaid contributors, such as a “letter to the editor.”

In 1996, when the web as we know it was still in its infancy, Congress passed the Communications Decency Act. An amendment to the original bill, Section 230, stated, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The statute protected Internet providers from being deemed news organizations and gave legal immunity to the tech companies, ostensibly to foster industry growth and freedom of speech.

The U.S. Supreme Court stripped away much of the bill in 1998, but Section 230 was left unscathed.

Later precedents interpreted Section 230 broadly so that digital platform companies could grow exponentially, without serious concern for illegal speech placed on their platforms. And grow they did, to become the gargantuan companies that they are today, complete with secret algorithms that render selected users invisible. At the start, the young companies would not have been economically feasible minus the provision.

The law also prevents liability in the event “objectionable” material is removed. If the companies do choose to eliminate offensive user-created content, their immunity is not forfeited.

These massive companies are essentially being treated by the law as if they are still mere startups. Although many in the tech community see Section 230 as sacrosanct, i.e., not to be touched, the provision was modified by a bi-partisan coalition in Congress earlier this year. President Trump signed legislation amending Section 230 in April 2018, denying some legal immunity to internet platforms in order to fight sex trafficking.

More carve outs of the statute, or the threat of such, will get the attention of the tech giants and perhaps motivate them to return to the free and open platforms they once wanted to be.